Banyan: SOAS Advocates provides post-Kiobel case support to lead on FOI request

19 May 2014

Banyan: SOAS Advocates, a network of SOAS students providing pro bono legal and policy research, were called upon by the Corporate Responsibility Coalition (CORE) to provide post- Kiobel support.

The case of Kiobel v Royal Dutch Shell Petroleum Company was recently decided in front of the US Supreme Court. Kiobel, or the Nigerian plaintiffs, sued Shell for its alleged complicity in serious human rights abuses, including rape and torture.

Last year, the team at Banyan conducted archival research and drafted arguments to support the proposition that corporations can be sued and that the ATS should apply extraterritorially. The substance of the research was cited in oral argument and in the final judgement.

The US Supreme Court unanimously rejected the plaintiffs' appeal in the recent ruling, holding that there was not enough of a connection to the US for the Alien Torts Statute (ATS) to apply.

Following this, Banyan was asked by CORE, an organisation which seeks to put pressure on the UK Government to take action to minimise the negative human rights and environmental impacts of UK-based companies, to assist with a Freedom of Information (FOI) request in relations to the Kiobel case.

The SOAS students involved were Thomas Trennery, MA Law, Victoria Fernandes, LLM and Belize Harrison, LLM, and the coordinators at CORE were Marilyn Croser and Ben Amunwa.

The purpose of this request was to specifically focus on the UK’s intervention in this case – looking at both UK and Dutch governments, who in 2012 submitted 2 amicus curae briefs to Supreme Court seeking to limit US extraterritorial jurisdiction and support Shell’s arguments. FOI Laws would be used to find out more about this intervention.

Thomas Trennery said: “My main task was providing research on legal professional privilege and how to circumvent the government’s attempt to withhold information on this point. This is an inherently difficult exemption to challenge given that such privilege against disclosure recognises the fundamental human right to be candid with legal counsel. However, it is possible to show that the public interest may swing in favour of disclosure in some cases – using previous case law and applying it to the case in hand was an exciting challenge.

“In the end, we were more successful than expected. We achieved a considerable level of disclosure on many documents, particularly those relating to government policy, public affairs and commercial interests. Even where we were not successful, the Information Commissioner’s comments revealed that we had often come tantalisingly close. In particular, the exemption relating to legal professional privilege was upheld but the public interest was ‘finely balanced’ and the ICO acknowledged that there was a strong case for disclosure. More work, no doubt, will be put into pushing further against the government’s efforts to withhold the information in this case – but I certainly found my role in the project to be both stimulating and highly rewarding.”

Victoria Fernandes, whose main task was to research around the withholding of information by BIS and FCO that related to the formulation of government policy, which is an exception to FOI, said: “At first it seemed like we were fighting a losing battle, the arguments in favour of upholding non-disclosure seemed water tight. However as SOAS students we have a lot going for us, we have resources – SOAS legal librarian Bob Burns was extremely helpful, time, determination and a lot of coffee to keep us going! After digging around FOI case law, holes quickly began to appear in the government’s arguments. For example as raised by Ben, some documents suggested that the government was in communications with Shell. FOI case law supports a strong interest in the transparency of such relationships therefore the ‘safe space’ argument is not extended to lobbyists.

“Thankfully CORE has been successful in the disclosure of many documents and I am very grateful to have been given the opportunity to work on such a case and with such a great team.”

Marilyn Croser, Coordinator at CORE said: “Huge thanks to… the fantastic volunteers from Banyan: SOAS Advocates, without whom it would have been impossible for CORE to pursue the complaints to the ICO.”